Continuing Negligent Treatment Doctrine Applies Across Multiple Medical Practitioners
In Baker v. Farrand, 2011 ME 91, 26 A.3d 806, the Maine Law Court held that, under the “continuing negligent treatment” doctrine, a doctor could be held liable for negligence that occurred outside the statute of limitations period as long as at least one of the “related acts” of negligence “occurred within three years of the notice of claim.” Id. at ¶ 29.
In Baker, the negligence was committed by the same doctor who saw the patient both within and outside of the three-year limitations period. Since Baker, some have assumed that “continuing negligent treatment” applied only in cases of negligence committed by the same individual practitioner. At Gideon Asen, we believed that this narrow interpretation of Baker was erroneous, because, by its own terms, Baker required only that the negligence be committed by the same “medical provider,” a term that was defined to include medical corporations such as health care clinics, primary care offices and hospitals.
We recently tested our interpretation of Baker in Michael and Nancy Whittier v. Central Maine Medical Center. In Whittier, Plaintiffs allege that, from 2016 to 2018, several primary care providers employed by CMMC failed to notify Mr. Whittier that he had an elevated prostate-specific antigen (“PSA”) test, which was concerning for prostate cancer. The lawsuit, which was commenced in 2021, alleged that Plaintiff could pursue claims related to the negligence that occurred outside the three-year statute of limitations period under the “continuing negligent treatment” theory.
CMMC moved for summary judgment, arguing that Plaintiff sought to radically expand Maine’s “continuing negligent treatment” theory. In an opinion issued on January 30, 2023, Justice Thomas R. McKeon, of Maine’s Business & Consumer Court, denied CMMC’s motion, holding that Plaintiffs’ claims could proceed. In his opinion, the Court held: “A plain reading of the applicable common law and statutes permits an action for continuing negligence against a hospital provider for the negligence of its employees. The court sees no basis to isolate the conduct of one employee from the conduct of another employee. The court cannot say that, as a matter of law, Plaintiffs’ continuing negligence claim must fail because the relevant conduct was not the conduct of a single health care provider.”
In our view, Justice McKeon’s interpretation of Baker is the correct one and consistent with its holding and the Maine Health Security Act. The Whittier decision is an important one, because patients are often treated by multiple different practitioners who are employed by the same healthcare company. The Whittier case means that when one or more of these healthcare practitioners commit related acts of negligence within and outside of the three-year limitations period, each of the negligent acts may be prosecuted as part of a malpractice action.
Click here to read the opinion in its entirety.
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